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Organ Sales and the Value of Life: Framing the Issues

29 October 2015

There is increasing consensus that the organ donation status quo is intolerable. According to a U.S. government website, there are presently 122,613 patients in the U.S. in need of an organ transplant. It is estimated that 22 people die each day waiting for an organ. Each year the number of individuals in need of a transplant continues to rise. Parallel statistics present themselves for nearly every country for which data is available.

Responses to the crisis have varied. Many EU countries, including Spain and Belgium, have instituted what is colloquially known as an opt-out system, in which the default is that one is considered to be willing to donate an organ unless explicitly having indicated to the contrary. In many countries, including the U.S. and Israel, although the sale of organs is illegal, there is compensation available for loss of work time as well as other costs associated with the donation. Still, these attempts have fallen well short of resolving the crisis, leaving the problem intact.

As a result of the shortage, organ trafficking has flourished in recent years. Impoverished individuals often sell kidneys for meager amounts, while the recipient pays an average of $160,000 for the procedure, with the middle men skimming the overwhelming majority of the money off the top. To make matters worse, many of the procedures, because illegal and not subject to oversight, are performed improperly, leading to significant medical complications.

A handful of countries, including Iran and the Philippines, have legalized the practice. Some experts have estimated that under current conditions a legalized kidney market would run upwards of roughly $15,000, a dramatic decrease from the $160,000 figure cited above. To save lives and create more humane conditions for the indigent, the case for legalizing the sale of organs seems to be picking up steam. One crucial question remains: how would halakha respond to this quandary?

At first glance, we might assume that Jewish law would be quite sympathetic to the argument for leniency. After all, in addition to the Torah’s constant refrain that we must be empathetic to the plight of the downtrodden in society, pikuach nefesh – the endangerment to life – is a cardinal halakhic value. Indeed, under typical circumstances it is generally assumed that the potential for loss of life takes precedence over all mitzvot with the exception of only idolatry, illicit relations, and murder (Yoma 85a). One might suppose then that halakha would staunchly advocate for a policy legalizing organ sales. Yet poskim do not seem to be in a rush to advocate for this position. And so the question remains: why not? If pikuach nefesh is a paramount value in halakha, why not explore seriously the possibility of permitting the sale of organs as a potential solution?

This assumption about Jewish law, however, makes an unfounded assumption about the role of pikuach nefesh in the halakhic system. To wit, although human life is clearly a crucial value, other considerations must be taken into account. In particular, halakha is ambivalent regarding means of saving human life by unethical means. One sugya in particular – that of assur le-hatzil atzmo be-mamon chaveiro – appears to be the locus classicus for this contention.

Next week, we'll examine this subject and its potential ramifications for a more nuanced view of the role of pikuach nefesh in Jewish law, as well as its implications for developing a Torah perspective on the organ trade industry.